Sorry: the unfinished business of the Bringing Them Home report

4 February 2008

Coral Dow
Social Policy Section

Introduction

On 26 May 1997 the report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, entitled Bringing Them Home, was tabled in Parliament. It received widespread publicity the following day at the Australian Reconciliation Convention in Melbourne and led to continuing public and parliamentary debate about the implementation of its recommendations.

A key recommendation in the report was that reparation be made to Indigenous people affected by policies of forced removal. That reparation should include an acknowledgement of responsibility and apology from all Australian parliaments and other agencies which implemented policies of forcible removal as well as monetary compensation.

State and territory parliaments have apologised specifically to those affected by the policies of separation. Under the Howard Government the Commonwealth Parliament did not agree to a full apology but expressed deep and sincere regret for unspecified past injustices as part of a Motion of Reconciliation on 26 August 1999.

Since elected to Government in 2007 the Australian Labor Party has announced that it will honour its policy of an unreserved apology to the Stolen Generations but has rejected any suggestions to compensate victims.

These two components of reparation, an apology and compensation, remain as the major unfinished business of the Bringing Them Home report. This Background Note provides an overview of these issues within the context of the Bringing Them Home report, a chronology of the key developments in the debate, the text of state and territory apologies and links to further web resources.

Background

The report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (the Inquiry), entitled Bringing Them Home, was tabled in Parliament on 26 May 1997.[1]

The key findings of the Inquiry were:

nationally, between one in three and one in ten Indigenous children were forcibly removed from their families and communities between 1910 and 1970

Indigenous children were placed in institutions, church missions, adopted or fostered and were at risk of physical and sexual abuse. Many never received wages for their labour

welfare officials failed in their duty to protect Indigenous wards from abuse

under international law, from approximately 1946 the policies of forcible removal amount to genocide; and from 1950 the continuation of distinct laws for Indigenous children was racially discriminatory and

the removal of Indigenous children continues today. Indigenous children are six times more likely to be removed for child welfare reasons and 21 times more likely to be removed for juvenile detention reasons than non-Indigenous children.[2]

The Inquiry made 54 recommendations. A key recommendation was that reparation be made to Indigenous people affected by policies of forced removal. Reparation should include:

an acknowledgement of responsibility and apology from all Australian parliaments, police forces, churches and other non-government agencies which implemented policies of forcible removal

Bringing Them Home did not specify the wording of an apology, if an apology should use the words apologise or sorry or what an apology should involve. It did specify that official apologies should be negotiated with the Aboriginal and Torres Strait Islander Commission (ATSIC) and that the apologies were the responsibility of all Australian parliaments, rather than all governments.

Although the Commonwealth Government did not respond to the report until December 1997[4] it was evident in the speech that Prime Minister Howard gave to the Australian Reconciliation Convention on the day following the report s tabling that the Commonwealth Government would reject the recommendation of an apology from the Commonwealth Parliament. John Howard expressed his personal sorrow but stated Australians of this generation should not be required to accept guilt and blame for past actions and policies over which they had no control. [5] In the following ten years the Prime Minister never changed his justification for opposing an apology. During the 2007 election campaign he accepted some blame for a breakdown in dialogue with Aboriginal leaders and when Aboriginal delegates turned their backs on him at the 1997 Reconciliation Convention, but remained adamant on the issue of an apology:

I have never been willing to embrace a formal national apology, because I do not believe the current generation can accept responsibility for the deeds of earlier generations. And there's always been a fundamental unwillingness to accept, in this debate, the difference between an expression of sorrow and an assumption of responsibility.[6]

This argument of accepting guilt for past actions became one of three primary justifications for the rejection of an unreserved apology. The Government further argued that the laws at the time were just: the Minister for Aboriginal and Torres Strait Islander Affairs, Senator Herron, stated, an apology could imply that present generations are in some way responsible and accountable for the actions of earlier generations, actions that were sanctioned by the laws of the time, and that were believed to be in the best interests of the children concerned .[7]

The Government also argued that an apology may have liability implications. In May 1997 Prime Minister Howard said in an interview that there are a number of reasons [why the Government had not apologised to Indigenous peoples]: one of them is that a formal unqualified apology does, according to the legal advice we have received, have certain legal implications .[8] The argument that an apology might result in legal liability was countered by the argument that the Parliamentary Privileges Act 1987 protected statements made in Parliament.[9]

In the public debates that followed, arguments for and against an apology ranged from the elementary view that an apology was not needed because there was no stolen generation,[10] to elaborate legal arguments that an apology was unnecessary because court judgments had decided Commonwealth laws which authorised child removals in the Northern Territory were valid and that administrators of the policies had acted within the law.[11] A later case was decided which gave compensation to an invidual who was removed illegally.[12]

Such arguments did not deter state and territory Governments which, since 1997, have all passed motions that include an explicit apology for the forced separation of children.[13] Under the Howard Government the Commonwealth Parliament did not agree to a full apology but expressed deep and sincere regret for unspecified past injustices as part of a Motion of Reconciliation on 26 August 1999. The Motion of Reconciliation was co-sponsored in the Senate by newly elected Senator Aden Ridgeway, a Gumbayynggir man from New South Wales. The Opposition Leader, Kim Beazley, moved an amendment to replace deep and sincere regret with an apology and with specific reference to the stolen generation:

unreservedly apologises to indigenous Australians for the injustice they have suffered, and for the hurt and trauma that many indigenous people continue to suffer as a consequence of that injustice; [and] calls for the establishment of appropriate processes to provide justice and restitution to members of the stolen generation through consultation, conciliation and negotiation rather than requiring indigenous Australians to engage in adversarial litigation in which they are forced to relive the pain and trauma of their past suffering.

Despite arguments against saying sorry many non-government organisations, churches and individuals have apologised or signed the more than 400 Sorry Books that have circulated since the inaugural Sorry Day on 26 May 1998, the anniversary of the Bringing Them Home report.[15] The Howard Government s argument that symbolic measures such as apologies, ceremonies and gestures of reconciliation are less important than practical measures in improving the conditions of Indigenous peoples have been challenged. Many Indigenous Australians in their evidence to the Inquiry spoke of the importance of acknowledgment and apology to their own healing. A paper prepared for the National Sorry Day Committee on progress in the implementation of the Bringing Them Home recommendations reported:

The journey towards healing for a stolen generations person can be lengthy. Many have not yet started, while others have only just begun. Val Linow tells of the sight of a large white SORRY created in the sky above the Sydney Harbour Bridge on the day in May, 2000 when 250,000 people joined in solidarity in walking across that bridge. Val's experience that day was the start of her personal journey of healing. That so many people cared overwhelmed her and diminished her feelings of anger for her past treatment to an extent that she could begin to forgive and, in doing so, to heal.[16]

The significance, not only of an apology, but of the use of the word sorry to the stolen generations should be noted in this debate. When the Prime Minister, Kevin Rudd, announced that an apology would be made in Parliament on 13 February 2008, Stolen Generations Alliance spokesperson Christine King s reaction included the part an apology would play in the healing process and the importance of the word sorry: Sorry is the most important word because it has great meaning in our community, it means having empathy and compassion and understanding .[17]

Compensation

Stakeholders such as the National Sorry Day Committee and the Stolen Generations Alliance seek full implementation of the Bringing Them Home recommendations, including recommendation 5a concerning reparations.[18] The Bringing Them Home report recommended that monetary compensation be made to those who had been forcibly removed from their families. The question of appropriate compensation was dealt with in length by the Senate Legal and Constitutional References Committee s 2000 Inquiry into the Federal Government s Implementation of Recommendations Made by the Human Rights and Equal Opportunity Commission in Bringing Them Home.

In its report Healing: a Legacy of Generations the Committee recommended the establishment of a Reparations Tribunal .[19] In its response the Commonwealth Government accepted that the events of the past and their legacy be acknowledged , however the response continued the emphasis on a policy of practical measures: it pledged further funding for family reunions and health services and of the need to monitor programmes and services. Recommendations 7 9, regarding the establishment of a reparations tribunal, were not supported:

The government considers that establishing a tribunal with the comprehensive jurisdiction and extensive powers suggested would neither guarantee a less stressful consideration of matters nor less expense for either party than court proceedings. The same complex and costly legal and factual issues would need to be addressed in order to assess individual claims and such decisions would still be open to further judicial review. The experience of other administrative tribunals, including in the field of immigration and refugees, illustrates that it is not possible to insulate such deliberations from legal challenges and procedures. The Dissenting Report of the Government Senators on the Committee also highlights the fundamental practical problems associated with the operation of a compensation tribunal in this context. This includes the basic question of defining what circumstances and which affected individuals would or would not qualify for compensation.

Additionally, State governments are responsible for the laws which were in place in their jurisdictions during the period that Indigenous child removals took place. No state government has offered to pay monetary compensation or establish such a tribunal. It is a matter for the non-government organisations involved in the removal and care of children to respond to compensation claims addressed to their actions.[20]

The only government to offer compensation to Indigenous stolen children to date is the Tasmanian Labor government which made an election commitment in 2006 to compensate Aboriginal Tasmanians who were removed from their families.[21] The Tasmanian Stolen Generations of Aboriginal Children Act 2006 created a $5 million fund to provide payments to eligible members of the Stolen Generations of Aborigines and their children. An Office of the Stolen Generations Assessor was established and claims for compensation were scheduled to be determined by January 2008.

In December 2007 the Western Australian Government announced a $114 million redress scheme, to be known as Redress WA, for all children who were abused while in State care, including members of the Stolen Generations.[22]

Some individuals have sought compensation through the courts. To date Bruce Trevorrow has been the only successful plaintiff to obtain monetary compensation. The Supreme Court of South Australia found that the state of South Australia was liable for injury suffered by Trevorrow that resulted from removal from his family as a child without their knowledge or consent.[23]

Appendix 1: Bringing Them Home Chronology

Over time a recurrent theme in Aboriginal oral histories, art, song and biographies from all parts of Australia was the pain and suffering caused by welfare policies that had taken children away .[24]

1980s: Research by academic Peter Read documented the policy of forced separation in New South Wales and gave the name Stolen Generations to those people affected by the policy.[25]

1983: Coral Edwards and Peter Read established the organisation Link-Up to assist families to reunite.[26]

Early 1990s: A campaign by key Indigenous agencies including Link-Up and the Secretariat of National Aboriginal and Islander Child Care, and a large Going Home Conference in Darwin in 1994 presented their concerns that public ignorance of the history of forcible removal of Aboriginal children was hindering the recognition of the needs of its victims, their families and the provision of services.

May 1995: The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (the Inquiry) was established by the then Attorney-General, the Hon. Michael Lavarch, who announced the terms of reference. The Inquiry was asked to:

examine the past and continuing effects of separation of individuals, families and communities

identify what should be done in response, which could entail recommendations to change laws, policies and practices, to re-unite families and otherwise deal with losses caused by separation

find justification for, and nature of, any compensation for those affected by separation and

look at current laws, policies and practices affecting the placement and care of Indigenous children.

December 1995 October 1996: The Inquiry heard evidence in every capital city and many regional centres. It received 777 submissions, including 535 from Indigenous individuals and organisations, 49 from church organisations and 7 from government.

26 May 1997: The Inquiry s report, Bringing Them Home, was tabled in Parliament.

November 1999: The Senate asked the Senate Legal and Constitutional References Committee to inquire into the implementation of recommendations made in the Bringing Them Home report, including the adequacy and effectiveness of the Government s response. The Federal Government s submission to the inquiry was presented by Senator Herron and included the propositions that there never was a generation of stolen children and the proportion of separated Aboriginal children was no more than 10 per cent . Widespread public debate on the issue of how many children were removed followed publication of the submission.[27].

November 2000: The Senate Committee tabled its report, Healing: A legacy of generations, and made ten recommendations. The key ones concentrated on the issue of reporting and monitoring of responses to the Bringing Them Home report; that the Australian Parliament agree to a motion of National Apology and Reconciliation ; and that a reparations tribunal be established.

24 October 2001: The Northern Territory Parliament agreed to the motion, Stolen Generation Apology . All state and territory parliaments had now apologised.

December 2003: The Ministerial Council for Aboriginal and Torres Strait Islander Affairs (MCATSIA) agreed to sponsor an independent evaluation of government and non--government responses to Bringing Them Home. The findings were published in Evaluation of Responses to Bringing Them Home

Victoria

That this House apologises to the Aboriginal people on behalf of all Victorians for the past policies under which Aboriginal children were removed from their families and expresses deep regret at the hurt and distress this has caused and reaffirms its support for reconciliation between all Australians.

Queensland

3 June 1997: Stolen Children, Aboriginal Reconciliation

The Hon K. R. Lingard, Minister for Families, Youth and Community Care

I move that the Parliament of Queensland on behalf of the people of Queensland expresses its sincere regret for the personal hurt suffered by those Aboriginal and Torres Strait Islander people who in the past were unjustifiably removed from their families.

26 May 1999: Stolen Generation motion

Hon. P. D. Beattie I move-

That this House apologises to Aboriginal and Torres Strait Islander people in Queensland on behalf of all Queenslanders for the past policies under which indigenous children were forcibly separated from their families and expresses deep sorrow and regret at the hurt and distress that this caused. This House recognises the critical importance to indigenous Australians and the wider community of a continuing reconciliation process, based on an understanding of, and frank apologies for, what has gone wrong in the past and total commitment to equal respect in the future.

Western Australia

27 May 1997: Aborigines, Family Separation

Mr Court, Premier

It is appropriate that this House show respect for Aboriginal families that have been forcibly separated as a consequence of government policy in the past, by observing a period of silence (Members stood for one minute silence)

I move that this House apologises to the Aboriginal people on behalf of all Western Australians for the past policies under which Aboriginal children were removed from their families and expresses deep regret at the hurt and distress that this caused.

South Australia

28 May 1997: Aboriginal Reconciliation

The Hon Dean Brown, Minister for Aboriginal Affairs

I move that the South Australian Parliament expresses its deep and sincere regret at the forced separation of some Aboriginal children from their families and homes which occurred prior to 1964, apologises to these Aboriginal people for these past actions and reaffirms its support for reconciliation between all Australians.

Tasmania

13 August 1997: Motion of Apology to Aboriginal People

Mr Rundle (Premier)-Mr Speaker, the motion before the House this afternoon is:

That this Parliament, on behalf of all Tasmanians, expresses its deep and sincere regrets at the hurt and distress caused by past policies under which Aboriginal children were removed from their families and homes, apologies to the Aboriginal people for those past actions and reaffirms its support for reconciliation between all Australians.

Australian Capital Territory

apologises to the Ngunawal people and other Aboriginal and Torres Strait Islander people in the ACT for the hurt and distress inflicted upon any people as a result of the separation of Aboriginal and Torres Strait Islander children from their families

assures the Aboriginal peoples and Torres Strait Islanders of this Territory that the Assembly regards the past practices of forced separation as abhorrent and expresses our sincere determination that they will not happen in the ACT

affirms its commitment to a just and proper outcome for both the grievances of Aboriginal and Torres Strait Islander people adversely affected by those policies and to the recommendations of the Bringing them home Report,

acknowledges that the Government is negotiating a Regional Agreement with the Ngunawal people in relation to the Ngunawal Native Title claim in the ACT, and

by this resolution seeks to take an important step in the healing process which is fundamental to reconciliation between Aboriginal and Torres Strait Islander peoples and the non-indigenous members of the ACT community.

Northern Territory

(a) apologises to Territorians who were removed from their families under the authority of the Commonwealth Aboriginals Ordinance and placed in institutional or foster care;

(b) acknowledges their belief that such removals represented the implementation of a government assimilation policy without regard to individual welfare circumstances;

(c) recognises the profound sense of loss and emotional trauma suffered by both the removed children and the communities from which they were taken, regardless of the existence or non-existence of any valid welfare reason for removal in any particular case;

(d) recognises that in the great majority of cases the removed children received inadequate care, guidance, and education, and that the Commonwealth government of the day failed in its obligation to facilitate reunions between the removed children and their Aboriginal communities once any purported welfare objective had been achieved; and

(e) calls upon the Commonwealth government to make a formal and specific apology to all those persons removed pursuant to the Aboriginals Ordinance, acknowledging that the Commonwealth failed in discharging its moral obligations towards them.

[8]. J. Howard (Prime Minister), Nightline, 29 May 1997; extract played on PM 30 May 1997 during an interview with Peter Reith (then Minister Assisting the Prime Minister for the Public Service) regarding the question of legal liability attached to an apology and the advice given to the Government.

[9]. See, for example, statement from the Attorney-General: It is correct that if subsequent court proceedings take place such a Parliamentary statement [an apology] could not be cited. D. Williams, (Attorney-General), media release, 30 May 1997. For further discussion of legal liability and parliamentary privilege see: Senate Legal and Constitutional References Committee, Healing: A Legacy of Generations , Senate, Canberra, 2000, sections 4.16 4.21, pp. 113 15.

For examples of other for and against arguments see John Garden, From dispossession to reconciliation , Research Paper, no. 27, Department of the Parliamentary Library, Canberra, 1998 1999, Part Four: The Apology Obstacle .

[15]. Some personal, church and trade union apologies are included in Reynolds, op.cit.

[16]. P. O'Brien and J. Bond, Are We Helping Them Home? Survey Of Progress in the Implementation of the Bringing Them HomeRecommendations by November 2002, National Sorry Day Committee, Canberra, 2002, p.35.

[19]. See Senate Legal and Constitutional References Committee, Healing: A Legacy of Generations, the Senate, Canberra, 1997, Chapter 8; also the Minority Report by The Australian Democrats, Chapter 3.